Virginia Code 59.1-508.16: Limitations on electronic self-help
(a) In this section,
Terms Used In Virginia Code 59.1-508.16
- Agreement: means the bargain of the parties in fact as found in their language or by implication from other circumstances, including course of performance, course of dealing, and usage of trade as provided in this chapter. See Virginia Code 59.1-501.2
- Cancellation: means the ending of a contract by a party because of breach of contract by another party. See Virginia Code 59.1-501.2
- Computer: means an electronic device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions. See Virginia Code 59.1-501.2
- Computer information: means information in electronic form that is obtained from or through the use of a computer or that is in a form capable of being processed by a computer. See Virginia Code 59.1-501.2
- Copy: means the medium on which information is fixed on a temporary or permanent basis and from which it can be perceived, reproduced, used, or communicated, either directly or with the aid of a machine or device. See Virginia Code 59.1-501.2
- Court: includes an arbitration or other dispute-resolution forum if the parties have agreed to use of that forum or its use is required by law. See Virginia Code 59.1-501.2
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Virginia Code 59.1-501.2
- give notice: means to take such steps as may be reasonably required to inform the other person in the ordinary course, whether or not the other person actually comes to know of it. See Virginia Code 59.1-501.2
- Good faith: means honesty in fact and the observance of reasonable commercial standards of fair dealing. See Virginia Code 59.1-501.2
- Information: means data, text, images, sounds, mask works, or computer programs, including collections and compilations of them. See Virginia Code 59.1-501.2
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- License: means a contract that authorizes access to, or use, distribution, performance, modification, or reproduction of, information or informational rights, but expressly limits the access or uses authorized or expressly grants fewer than all rights in the information, whether or not the transferee has title to a licensed copy. See Virginia Code 59.1-501.2
- Licensee: means a person entitled by agreement to acquire or exercise rights in, or to have access to or use of, computer information under an agreement to which this chapter applies. See Virginia Code 59.1-501.2
- Licensor: means a person obligated by agreement to transfer or create rights in, or to give access to or use of, computer information or informational rights in it under an agreement to which this chapter applies. See Virginia Code 59.1-501.2
- Party: means a person that engages in a transaction or makes an agreement under this chapter. See Virginia Code 59.1-501.2
- Person: means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental subdivision, instrumentality, or agency, public corporation, or any other legal or commercial entity. See Virginia Code 59.1-501.2
- Receipt: means :
(A) with respect to a copy, taking delivery; or
(B) with respect to a notice:
(i) coming to a person's attention; or
(ii) being delivered to and available at a location or system designated by agreement for that purpose or, in the absence of an agreed location or system: (a) being delivered at the person's residence, or the person's place of business through which the contract was made, or at any other place held out by the person as a place for receipt of communications of the kind; or (b) in the case of an electronic notice, coming into existence in an information processing system or at an address in that system in a form capable of being processed by or perceived from a system of that type by a recipient, if the recipient uses, or otherwise has designated or holds out, that place or system for receipt of notices of the kind to be given and the sender does not know that the notice cannot be accessed from that place. See Virginia Code 59.1-501.2
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Virginia Code 59.1-501.2
- State: means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. See Virginia Code 59.1-501.2
(1) “electronic self-help” means the use of electronic means to exercise a licensor‘s rights under § 59.1-508.15 (b); and
(2) “wrongful use of electronic self-help” means use of electronic self-help other than in compliance with this section.
(b) On cancellation of a license, electronic self-help is not permitted, except as provided in this section. Notwithstanding any provision to the contrary, electronic self-help is prohibited in mass-market transactions.
(c) If the parties agree to permit electronic self-help, a licensee shall separately manifest assent to a term authorizing use of electronic self-help. In accordance with subsection (c) of § 59.1-501.12, a general assent to a license containing a term authorizing use of electronic self-help is not sufficient to manifest assent to the use of electronic self-help. The term must:
(1) provide for notice of exercise as provided in subsection (d);
(2) state the name of the person designated by the licensee to which notice of exercise must be given and the manner in which notice must be given and place to which notice must be sent to that person; and
(3) provide a simple procedure for the licensee to change the designated person or place.
(d) Before resorting to electronic self-help authorized by a term of the license, the licensor shall give notice in a record to the person designated by the licensee stating:
(1) that the licensor intends to resort to electronic self-help as a remedy on or after forty-five days following receipt by the licensee of the notice;
(2) the nature of the claimed breach that entitles the licensor to resort to self-help; and
(3) the name, title, and address, including direct telephone number, facsimile number, or e-mail address, to which the licensee may communicate concerning the claimed breach.
(e) A licensee may recover direct and incidental damages caused by wrongful use of electronic self-help. The licensee may also recover consequential damages for wrongful use of electronic self-help, whether or not those damages are excluded by the terms of the license, if:
(1) within the period specified in subsection (d) (1), the licensee gives notice to the licensor’s designated person describing in good faith the general nature and magnitude of damages;
(2) the licensor has reason to know the damages of the type described in subsection (f) may result from the wrongful use of electronic self-help; or
(3) the licensor does not provide the notice required in subsection (d).
(f) Even if the licensor complies with subsections (c) and (d), electronic self-help may not be used if the licensor has reason to know that its use will result in substantial injury or harm to the public health or safety or grave harm to the public interest substantially affecting third persons not involved in the dispute.
(g) A court of competent jurisdiction of the Commonwealth shall give prompt consideration to a petition for injunctive relief and may enjoin, temporarily or permanently, the licensor from exercising electronic self-help even if authorized by a license term or enjoin the licensee from misappropriation or misuse of computer information, as may be appropriate, upon consideration of the following:
(1) harm of the kinds stated in subsection (f), or the threat thereof, whether or not the licensor has reason to know of those circumstances;
(2) irreparable harm or threat of irreparable harm to the licensee or licensor;
(3) that the party seeking the relief is more likely than not to succeed under his claim when it is finally adjudicated;
(4) that all of the conditions to entitle a person to the relief under the laws of the Commonwealth have been fulfilled; and
(5) that the party that may be adversely affected is adequately protected against loss, including a loss because of misappropriation or misuse of computer information, that he may suffer because the relief is granted under this chapter.
(h) Before breach of contract, rights or obligations under this section may not be waived or varied by an agreement, but the parties may prohibit use of electronic self-help, and the parties, in the term referred to in subsection (c), may specify additional provisions more favorable to the licensee.
(i) This section does not apply if the licensor obtains physical possession of a copy without a breach of the peace and without the use of electronic self-help; in which case, a lawfully obtained copy may be erased or disabled by electronic means.